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TMI Blog2019 (6) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed the present appeal and he has confined his argument also with regard to denial of CENVAT credit on canteen services. The Commissioner has denied the CENVAT credit on canteen services mainly on the ground that after the amendment in the definition of input service w.e.f. 01/04/2011, canteen services / outdoor catering services has been excluded from the input services vide Rule 2(l)(C) of CCR, 2004. 2. Heard both sides and perused records. 3.1. Learned consultant appearing for the appellant submitted that the denial of CENVAT credit of outdoor catering is beyond the show-cause notice. He further submitted that in the show-cause notice, the CENVAT credit on outdoor catering were proposed to be denied mainly on the ground that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Wipro Ltd. Vs. CCE, Bangalore-III [2018(363) ELT 1111 (Tri. LB)] has held that outdoor catering service, after the amendment in the input service post 01/04/2011 is not eligible for cenvat credit. The learned consultant has fairly conceded that after the decision of the Larger Bench in the case of Wipro Ltd., appellants are not entitled to CENVAT credit on outdoor catering service. But in the present case, he has submitted that the entire demand of CENVAT credit on disputed canteen services is beyond limitation. He further submitted that show-cause notice was issued in the present case on 02/01/2015 covering the period December 2009 to September 2014 but the CENVAT credit on disputed canteen services has been availed for the period Apri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g availment of credit, being pointed out by C.E.R.A. Audit, the appellant had reversed it and also paid the interest on the same. It is also not in dispute that the show cause notice was issued to them after a lapse of one and a half year i.e. on 10-4-2009 proposing penalty under Section 11AC of Central Excise Act, 1944. I find that the show cause notice does not spell out the circumstances or facts which were suppressed and how the appellant had availed the said admissible CENVAT credit with mala fide intention. I also find that the Adjudicating authority as well as the Appellate authority did not discuss the facts which were suppressed or mis-declared or mis-stated by the appellant, except observing that had the Audit not pointed out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Poly Pvt. Ltd. Vs. CCE, Delhi-I [2011(273) ELT 85 (Tri. Del.)] wherein it was held that the show-cause notice was time barred as it was difficult to accept the department's contention that the relevant information with regard to the availment of cenvat credit on capital goods was deliberately suppressed by the appellant even though the appellant was regularly filing the ER-1 returns and the fact of clearance of goods without payment of duty under job work challan under Notification No.214/86-CE, was known to the department. He also relied upon the following decisions:- a. Shree Shree Telecom Pvt. Ltd. Vs. CCE, Hyderabad [2008(232) ELT 689 (Tri. Bang.)] b. Switch Gear Control Technics Pvt. Ltd. Vs. CCE [2009(240) ELT 78 (Tri. Bang.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ultimate consumer of the service, namely the worker, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. Shri Shridharan, learned Counsel for the assessee fairly conceded to the above position in law and in fact filed an affidavit affirmed by a responsible officer of the assessee wherein it is stated that the proportionate credit to the extent embedded in the cost of food recovered from the employee/worker has been reversed. 5. After considering the submissions of both the parties and perusal of the material on record, I find that the issue of CENVAT credit on outdoor catering service has been finally settled by the Larger Bench of this Tribunal in the case of Wipro Ltd. wherein the Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Further I find that there were conflicting decisions during the relevant period and that is why the matter was referred to the Larger Bench which settled the issue in the case of Wipro Ltd. in the year 2018. In view of these circumstances, appellant had a bona fide reason to believe that he is entitled to CENVAT credit as the issue relates to interpretation and therefore it cannot be alleged against the appellant that he has suppressed the material fact with intent to evade payment of duty. 6. In view of my discussion above and after considering the ratios of various decisions cited supra, I am of the considered view that on merits, appellant has no case in view of the decision of the Larger Bench in the case of Wipro Ltd. but on limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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